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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Mt. Rushmore Broadcasting, Inc. Licensee of Station
KMLD(FM) Casper, Wyoming ) ) ) ) ) ) ) File No.: EB-FIELDWR-12-00003594
NAL/Acct. No.: 201332800004 FRN: 0008230559 Facility ID No.: 11927
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: February 27, 2013 Released: February 28, 2013
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Mt. Rushmore Broadcasting, Inc. (Mount Rushmore),
licensee of Station KMLD(FM) in Casper, Wyoming, apparently willfully
and repeatedly violated Section 73.3526 of the Commission's rules
(Rules),^ by failing to maintain a complete public inspection file. We
conclude that Mount Rushmore is apparently liable for a forfeiture in
the amount of fifteen thousand dollars ($15,000). In addition, we
direct Mount Rushmore to submit, no later than thirty (30) calendar
days from the date of this NAL, a statement, signed under penalty of
perjury, attesting to its compliance with the Commission's public
inspection file requirements, for Station KMLD(FM).^
II. BACKGROUND
2. On Wednesday, August 17, 2011, an agent from the Enforcement Bureau's
Denver Office (Denver Office) conducted an inspection of Station
KMLD(FM). The Denver agent reviewed the Station KMLD(FM) public
inspection file and found that Station KMLD(FM) was missing
twenty-three (23) consecutive quarters of issues/programs lists, i.e.,
all quarterly issues programs lists since the Commission granted the
Station's renewal application on September 28, 2005.^ When queried by
the Denver agent, Station KMLD(FM) personnel were unable to locate any
issues/programs lists for the current license period other than four
documents.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty.^ Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law.^ The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act,^ and the Commission has so
interpreted the term in the Section 503(b) context.^ The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful.^ The term "repeated" means the commission or
omission of such act more than once or for more than one day.^
A. Failure to Maintain a Complete Public Inspection File
4. Section 73.3526(a)(2) of the Rules requires broadcast stations
maintain for public inspection a file containing materials listed in
that section.^ Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours,^ and Section 73.3526(e)(12) of the Rules
specifically requires licensees to place in their public inspection
file for each calendar quarter, a list of programs that have provided
the station's most significant treatment of community issues during
the preceding three month period.^ This list is known as the
issues/programs lists and must include a brief narrative describing
what issues were given significant treatment and the programming that
provided this treatment. Copies of the issues/programs lists must be
retained in the public inspection file until final action has been
taken on the station's next license renewal application.^ The renewal
of the Station KMLD(FM) license was granted on September 28, 2005, and
expires October 1, 2013. At the time of the August 17, 2011,
inspection, the Station KMLD(FM) public inspection file was missing
twenty-three (23) consecutive quarters of radio issues/programs lists.
The file contained no lists since the station's 2005 renewal was
granted. Based on the evidence before us, we find that Mount Rushmore
apparently willfully and repeatedly violated Section 73.3526 of the
Rules by failing to maintain the issues/programs lists and make them
available in the Station's public inspection file.
A. Proposed Forfeiture Amount and Reporting Requirement
5. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violation of the
public file rules is $10,000.^ In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require.^ Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we find no
downward adjustments are warranted, but conclude that an upward
adjustment is warranted because of the long duration of Mount
Rushmore's failure to create and make available issues/programs lists
in the Station KMLD(FM) public inspection file, which has continued
for the entire length of the current license term.^ Accordingly, we
propose a forfeiture amount of $15,000 rather than the base forfeiture
amount. Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Mount Rushmore is apparently liable for a forfeiture in the amount of
fifteen thousand dollars ($15,000).
6. We further order Mount Rushmore to submit a written statement,
pursuant to Section 1.16 of the Rules, signed under penalty of perjury
by an officer or director of Mount Rushmore, stating that it is
operating Station KMLD(FM) in compliance with Section 73.3526 of the
Rules,^ and detailing the specific actions taken by Mount Rushmore to
come into compliance. This statement must be provided to the Denver
Office at the address listed in paragraph 9 within thirty (30)
calendar days of the release date of this Notice of Apparent Liability
for Forfeiture and Order.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Mt. Rushmore
Broadcasting, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of fifteen thousand dollars ($15,000) for
violation of Section 73.3526 of the Rules.^
8. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Mt. Rushmore Broadcasting, Inc., SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. IT IS FURTHER ORDERED that Mt. Rushmore Broadcasting, Inc., SHALL
SUBMIT a written statement, as described in paragraph 6, within thirty
(30) calendar days of the release date of this Notice of Apparent
Liability for Forfeiture and Order. The statement must be mailed to
Federal Communications Commission, Enforcement Bureau, Western Region,
Denver District Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood,
Colorado 80226. Mount Rushmore shall also e-mail the written
statement to WR-Response@fcc.gov.
10. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Mount Rushmore shall send electronic
notification of payment to WR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted.^ When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^ If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver District Office, 215 S. Wadsworth Blvd., Suite 303,
Lakewood, Colorado 80226, and include the NAL/Acct. No. referenced in
the caption. Mt. Rushmore Broadcasting, Inc., also shall email the
written response to WR-Response@fcc.gov.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and first class mail to Mt. Rushmore Broadcasting,
Inc., at 218 N. Wolcott Street, Casper, Wyoming 82601-1923, and to its
counsel, Lee J. Peltzman, Esq., Shainis & Peltzman, Chartered, 1850 M
Street, NW, Suite 240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
^ 47 C.F.R. S 73.3526.
^ 47 C.F.R. SS 1.16, 73.3526.
^ See Application for Renewal of License for Station KMLD(FM), File
Number BRH-20050601BGX, granted September 28, 2005.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Application for Review of Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons.
denied, 7 FCC Rcd 3454 (1992).
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
^ Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
^ 47 C.F.R. S 73.3526(a)(2).
^ 47 C.F.R. S 73.3526(c)(1).
^ 47 C.F.R. S 73.3526(e)(12).
^ Id.
^ The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and
Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ See 47 C.F.R. S1.80(b)(5), Note to Paragraph (b)(5): Section II.
Adjustment Criteria for Section 503 Forfeitures (establishing "repeated or
continuous violation" as an upward adjustment factor). We also note that
Mount Rushmore has previously been assessed a forfeiture for violating
Section 301 of the Act by operating an unlicensed STL. See Mount Rushmore
Broadcasting, Inc., Memorandum Opinion and Order, 18 FCC Rcd 19804 (Enf.
Bur. 2003) (forfeiture paid).
^ 47 C.F.R. S 73.3526.
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
73.3526.
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 13-292
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Federal Communications Commission DA 13-292